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Bill of Lading

Bill of Lading Contract

Letter of credit
Last updated: 25-Dec-2014

In Standard Chartered Bank v Dorchester LNG & Anor (Rev 1) [2014] EWCA Civ 1382 per Moore-Bick LJ at paras 17,33 and 51:

17. Unless he is under a specifically enforceable obligation to do so, a person cannot be forced to accept a transfer of property or rights against his will. When a bank takes possession of a bill of lading under a letter of credit or any comparable financial arrangement it does so with the intention of holding it as security for the recovery of the funds that it becomes obliged to pay to the beneficiary. Normally it obtains a special property in the goods as a pledgee and a right to sue under the contract of carriage. If, on the other hand, the bank rejects the bill of lading altogether at the moment of presentation, there can be no delivery, any more than there could be of a chattel. The question in this case is whether, having taken possession of the bill of lading for examination, the bank, by rejecting it and holding it to the order of the person presenting it, refuses to accept delivery and thereby prevents the completion of the indorsement in its favour.

33. [O]nce [bank] had unequivocally rejected the bill of lading it could not unilaterally change its mind and decide to take it up. That could be done only with the consent of [seller], but whether that technically required a fresh presentation does not in my view matter. All that was necessary was for [seller] to make it clear that it was willing for [bank] to take up the documents and accept liability for payment of the amount stipulated in the letter of credit. If [bank] had done so, it would not have been open to Gunvor to argue that it had not become the holder of the bill of lading.

51. Whatever view may have been taken at the time when letters of credit were in their infancy, in my view the modern cases support the proposition that if the opening or confirming bank fails to pay against presentation of conforming documents under a letter of credit payable at sight, the beneficiary may sue in debt to recover the value of the credit, provided he is willing and able to transfer the documents to the bank against payment. That is consistent both with the essential nature of the undertaking contained in the letter of credit and with the expectation of those who make use of such instruments to finance international trade. It has been said on many occasions that letters of credit are the life-blood of international commerce and are intended by those who use them to be "as good as cash". In the words of Lord Diplock in United City Merchants v Royal Bank of Canada [1983] AC 168 at page 183F, the whole commercial purpose for which the system of confirmed irrevocable documentary credits has been developed in international trade is to give to the seller an assured right to be paid before he parts with control of the goods. If the beneficiary is willing and able to transfer the documents to the bank, therefore, he is entitled to recover the face value of the credit as a debt. If he is not willing or able to hand over the documents, the position is different, as Sir Christopher Staughton pointed out in Seaconsar Far East v Bank Markazi [1999] 1 Lloyd’s Rep. 36. Since the contract provides for payment against documents, the beneficiary is not entitled to recover the full value of the credit otherwise than on surrender of the documents.

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